AZIMOV v. RUSSIA (European Court of Human Rights)

THIRD SECTION
DECISION
Application no. 42812/11
Nasimi Aliastan Ogly AZIMOV
against Russia

The European Court of Human Rights (Third Section), sitting on 10 September 2019 as a Committee composed of:

Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and StephenPhillips, Section Registrar,

Having regard to the above application lodged on 1 July 2011,

Having deliberated, decides as follows:

THE FACTS AND PROCEDURE

1.  The applicant, Mr NasimiAliastanOglyAzimov, is a stateless person, who was born in 1974 and lives in Tambov.

2.  The applicant was represented by Ms Shaysipova, a lawyer practising in Tambov. The Russian Government (“the Government”) were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

3.  On 23 November 2017 notice of the complaints under Articles 3, 5 §§ 1 (f) and 4, and 13 was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4.  On 20 March 2018 the Government submitted a unilateral declaration in respect of the applicant’s complaints under Articles 3 and 13 of the Convention. The applicant, notified of the declaration by the letter of 28 March 2018, preferred not to comment on its terms.

5.  The facts of the case, as submitted by the parties, may be summarised as follows.

6.  On 9 April 2010 the applicant’s expulsion and detention pending expulsion was ordered by the Oktyabrskiy District Court of Tambov. The applicant did not appeal against the judgment.

7.  The applicant’s supervisory review appeals were dismissed on 9 April and 25 October 2010 by the Tambov Regional Court and on 17 January 2011 by the Supreme Court of Russia.

8.  On 20 March 2011 the applicant petitioned for release given impossibility to enforce the expulsion order.

9.  On 20 April 2011 the applicant was released after the expiry of the maximum time-limit for the enforcement of the expulsion order.

10.  On 28 April 2011 the Oktyabrskiy District Court of Tambov dismissed the applicant’s action of 30 March 2011 and terminated the expulsion proceedings.

COMPLAINTS

11.  The applicant complained under Article 3 and 13 of the Convention about the condition of detention in the detention centre for foreigners in Tambov and of the absence of domestic remedies in this regard. He further complained under Article 5 §§ 1 (f) and 4 of the Convention about an alleged unlawfulness of his detention pending expulsion and lack of a procedure to challenge lawfulness of his continued detention.

THE LAW

I. Alleged violation of Articles 3 and 13 of the Convention

12.  The applicant complained of violations of Articles 3 and 13 of the Convention on account of the conditions of detention in the special detention centre for aliens in Tambov between 9 April 2010 and 19 April 2011 as well as about the absence of effective remedies in this regard.

13.  On 20 March 2018 the Government submitted a unilateral declaration with a view to resolving the issues raised by the above complaints. They acknowledged the above violations of Articles 3 and 13 of the Convention. They offered to pay the applicant 4,725 euros (EUR) and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The payment would constitute the final resolution of the case.

14.  The above amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay these amounts within the above‑mentioned three-month period, the Government undertook to pay simple interest on them, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

15.  The applicant, notified of the declaration by the letter of 28 March 2018, preferred not to comment on its terms.

16.  The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:

“… for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

17.  Noting the acknowledgement contained in the Government’s declaration as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application in the part covered by the unilateral declarations (Article 37 § 1 (c)).

18.  In the light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application in that part (Article 37 § 1 in fine).

19.  Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

20.  In view of the above, it is appropriate to strike the case out of the list as regards the complaints concerning the conditions of detention in the special detention centre for aliens in Tambov between 9 April 2010 and 19 April 2011 as well as about absence of effective remedies in this regard.

II. Alleged violation of Article 5 §§ 1 and 4 of the Convention

21.  The applicant complained under Article 5 §§ 1 (f) and 4 of the Convention about an alleged unlawfulness of his detention pending expulsion and lack of an effective procedure to challenge his continued detention.

22.  The Court reiterates that the exception contained in sub‑paragraph (f) of Article 5 § 1 of the Convention requires only that “action is being taken with a view to deportation or extradition”, without any further justification (see, inter alia, Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996‑V), and that deprivation of liberty will be justified as long as deportation or extradition proceedings are in progress (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009).

23.  In this regard the Court emphasises that the question of whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features (see, mutatis mutandis, McKay v. the United Kingdom [GC], no. 543/03, §§ 41-45, ECHR 2006‑X) and that the arguments for and against release must not be “general and abstract” (see, for example, Khudoyorov v. Russia, no. 6847/02, § 173, ECHR 2005‑X (extracts)), but contain references to the specific facts and the applicant’s personal circumstances justifying his detention.

24.  Turning to the present case, the Court notes that the applicant’s complaint under Article 5 § 1 of the Convention is couched in general terms. While the applicant in his application form argued that the removal proceedings lacked requisite diligence, the available submissions neither highlight the relevant facts nor supply relevant legal reasoning. The applicant had not only failed to submit any documents on the progress of the expulsion proceedings, but apparently had found it unnecessary even to provide any narrative of the alleged deficiencies.

25.  The Court does not find it appropriate to rule in abstract and without relevant submissions from the applicant on whether in the light of the Convention standard the progress of the expulsion proceedings justified his continued detention. Accordingly, the Court concludes that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible.

26.  As regards the applicant’s complaint under Article 5 § 4 of the Convention concerning the alleged lack of an effective procedure to challenge his continued detention, the Court notes that it is also couched in general and abstract terms. Contrary to the applicant’s allegations, his representative on 30 March 2011 lodged a request for termination of the proceedings and the applicant’s release, which was accepted by the domestic courts. Indeed, the Oktyabrskiy District Court of Tambov on 28 April 2011 dismissed the applicant’s action, but this decision does not put any doubt on the fact that the applicant had effectively used a procedure capable of ensuring his release.

27.  The Court concludes that this complaint is also manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible.

For these reasons, the Court, unanimously,

Takesnote of the terms of the respondent Government’s declaration, in so far as it concerns the conditions of detention in the special detention centre for aliens in Tambov between 9 April 2010 and 19 April 2011 as well as about absence of effective remedies in this regard, and of the arrangements for ensuring compliance with the undertakings referred to therein;

Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 3 October 2019.

Stephen Phillips                                                 Alena Poláčková
Registrar                                                             President

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